Counsel for Jacob Zuma on Tuesday told the Pietermaritzburg high court it had jurisdiction on three different grounds to stay the constitutional court order for his arrest pending his application to rescind his 15-month jail sentence for contempt.

Advocate Dali Mpofu argued that the high court derived the power to suspend the implementation of the order from the common law doctrine of pendente lite (during the litigation), section 172 of the constitution and Zuma’s application to have the law on contempt declared unconstitutional.

The Zondo commission looking into state capture has filed papers submitting that the high court does not have the jurisdiction to hear either Zuma’s application for a stay, because it cannot stay or alter an order of the apex court, or his constitutional challenge, because he should have raised it earlier in the apex court.

But Mpofu said the high courts had primary jurisdiction in hearing legal challenges to the validity of legislation.

It follows from there, he said, that the court hearing Zuma’s application on the Criminal Procedure Act, had the power to stay his arrest on a conviction on the basis of the same act, pending its ruling in the matter.

Mpofu did not begin his pleadings with the issue of jurisdiction and tried to dismiss the Zondo commission’s argument that it was fatal to the application as “a red herring”.

But Justice Bhekisisa Mnguni contradicted Mpofu, saying this was the central question before him.

He asked why the applicant did not direct himself to the apex court for a stay of the warrant of arrest issued by Justice Sisi Khampepe last week when she handed Zuma an unprecedented sentence for defying an order that he co-operate with the Zondo commission and scandalising the courts with a string of political attacks.

Mpofu replied that no one could have known that the apex court would promptly issue a directive setting down the application for hearing next Monday.

He tripped over an argument that he was asking the high court to interdict the implementation of the apex court order that Zuma be imprisoned without interdicting the order itself, then steadied himself by saying he was rather seeking the stay of the warrant.

The commission’s counterargument is that the court order and its implementation are one and the same thing.

Mpofu’s starting point had been that the order should be granted unopposed because the minister and commissioner of police were the interested parties and cited respondents, not the Zondo commission, and they had filed a notice to abide.

Minister Bheki Cele and commissioner Khehla Sitole are under orders from the Constitutional Court to arrest Zuma by no later than Wednesday.

But in an extraordinary move, they have sent a letter to acting Chief Justice Raymond Zondo, informing him that they will not proceed, pending the apex court’s ruling on the rescission application, or any supplementary instructions from him.

Turning to affidavits filed by the Zondo commission and the Helen Suzman Foundation, Mpofu argued that these respondents had no business being before the court, because the arrest warrant was not theirs to enforce. He ventured that their arguments against a stay were grounded in “vindictiveness”, because it should not matter to them whether Zuma went to prison immediately or later.

Mnguni asked: “Assuming, in your favour, that there was no opposition in this matter at all, can I as a lower court make an order nullifying an order of the constitutional court?”

Cue Mpofu’s arguments on the high court’s jurisdiction, in which he contended  that, leaving aside the common law, it was  “double-barrelled” because of the powers conferred on high courts by section 172 of the constitution to hear constitutional challenges and to issue temporary orders pending a ruling on said constitutionality.

On the last point, the Zondo commission counters Zuma’s opportunity to argue that the time and place to argue that his constitutional rights were being violated was before the Constitutional Court when it heard its application for a contempt order, and that he chose not to do so.

Zuma’s rescission application is widely seen as flawed, and the commission argues that it does not meet the test of rule 42 of the Uniform Rules of Court, because he would need to show that the court order was sought or granted in error, and in his absence.

Zuma expressly elected not to oppose the commission’s application for a contempt order, and instead questioned the impartiality and authority of the court. 

Tembeka Ngcukaitobi, for the commission, began his pleadings after lunch by pointing out that Zuma was, once again, in contempt, because he had defied the Constitutional Court’s order that he hand himself over to the authorities by Sunday.